Drafting principles of limitation in the future

In the case of Microsoft v Commission, the Commission instructed a third company to prepare a detailed account and description of the technology used by the company. This information was then to be supplied to its competitors, who would have to incorporate it, while manufacturing their own products. In this manner, the Commission had designed a mandatory conduct for companies. This compelled conduct invoked political and industrial representation in the common market. The cases involving Article 82 impose difficulty on determining and drafting principles of limitation in the future.

The resulting guidelines must have clarity and must be free of ambiguity. If they lack clarity or if they are vague then there will be a risk of unreasonable enforcement of Article 82. Moreover, if the principles are limited in respect of the scope of operability then the Community law would be unable to develop . The Commission through its ruling in the case of Microsoft indicated greater willingness to discuss the behaviour of Microsoft and the effects of anti-competition practices adopted by it on the market.

The Commission also attempted to counter balance those adverse effects with the pro – competitive effects that would have emerged out of Microsoft’s trade practices. Most experts in the field are of the opinion that at present, uncertainty surrounds Article 82. This state of flux makes it very difficult for dominant firms to determine which type of conduct would be compatible with the provisions of Article 82 and which type of conduct would be incompatible. Most scholars and EC law experts believe that the existing interpretation of Article 82 is narrow and appears to be unsatisfactory.

They have demanded that the Commission must engender immediate reforms to Article 82 . The CFI’s ruling in the case of Microsoft v Commission had left a significant effect on the Article 82 enforcement agenda of the Commission. As far as the Commission is concerned the judgment of the CFI had set a strong legal precedent. The Commission can make use of this judgment in the existing cases of dominance and use it against companies, which have potential market power.

The Commission can also use the judgement against the dominant undertakings, which allegedly indulged in anti – competitive activities. This judgment is of special importance in the field of intellectual property industries such as electronics and pharmaceuticals, and there will be enhanced protection for competition and the enforcement of healthy competition under the provisions of Article 82 EC. The existing scenario requires a substantive interpretation of Article 82 EC, in order to ensure robust competition, in the common market.

The CFI’s ruling came amidst this situation and it reiterates the importance of substantive interpretation of Article 82. The legal experts who represented Microsoft demanded that the CFI must give a technical and traditional approach to Article 82 for their appeal against the decision of the Commission. The CFI had explicitly criticised their claims and adopted a back – to – basics approach. This approach allowed the Commission to forge ahead with its Article 82 enforcement agenda to enforce competition in the common market .